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Klosowski v. Bay City

United States District Court, E.D. Michigan, Northern Division

March 13, 2018

RON KLOSOWSKI, Plaintiff,
v.
BAY CITY, CITY OF, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION IN LIMINE (51), GRANTING IN PART PLAINTIFF'S MOTION IN LIMINE (48) AND DENYING DEFENDANTS' MOTIONS IN LIMINE (46, 47 AND 50)

          Honorable Thomas L. Ludington Judge

         On August 1, 2013, Plaintiff Ron Klosowski filed a complaint in the Circuit Court of Bay County alleging 1) tortious interference with advantageous business relationships, 2) tortious interference with contractual relationships, and 3) violation of Michigan public policy and the Michigan Constitution's guarantee of free speech, as against Defendants Joe Ledesma and the City of Bay City. Not. Rem., Ex. A, Summons and Compl., ECF No. 1. On January 29, 2015, Plaintiff filed a First Amended Complaint adding a claim for violation of the First Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983. Not. Rem. at 2, ECF No. 1. Defendants removed the case to this Court on February 19, 2015. Id.

         Defendants moved for Summary Judgment on April 4, 2016. Mot. Summ. J., ECF No. 30. This Court granted the Motion on June 10, 2016. Order Grant. Mot. Summ. J, ECF No. 37. Plaintiff filed a Notice of Appeal on July 7, 2016. Not. Appeal, ECF No. 39. On June 21, 2017, the Court of Appeals issued an opinion affirming this Court's order in part, and reversing in part. In light of the opinion of the Court of Appeals, a status conference was conducted on August 15, 2017 at 3:30 p.m. to discuss a schedule for further proceedings and briefing in this matter.

         The Court of Appeals reversed this Court's judgment with respect to the Section 1983 claims against Defendants Ledesma and Bay City. June 21, 2017, 6th Cir. Op., at 10-11. The Court of Appeals found that the constitutional rights at issue were clearly established, precluding qualified immunity, and that Ledesma was a final policy maker in that the City delegated the authority to Ledesma to regulate the scheduling of contractors. On remand, two elements of Plaintiff's prima facie case of first amendment retaliation are open questions for jury consideration, as well as the assessment of damages if liability is determined. Plaintiff, accordingly, bears the burden of proof with respect to the following issues:

1. Protected Speech: Whether Plaintiff's communication to Ledesma and Mayor Shannon about closing the bridges during the month of December was a communication in his capacity as a citizen about a matter of public concern or alternatively a communication about a matter within his employment responsibilities.
2. Causation: Whether Plaintiff's communication to Ledesma and Mayor Shannon was a substantial or motivating factor in Ledesma's decision not to call Plaintiff back for the 2013 season.[1]
3. Damages: Whether Plaintiff sustained damages reasonably and consequentially as a result of the decision not to call him back for the 2013 season.

         Defendant maintains the burden of proof on the following:

1. Overriding government interest: Whether Bay City's interest in promoting the efficiency of the public service function it performs through its employees outweighs Plaintiff's interest in raising the matter of public concern; and whether Plaintiff's speech activities unduly interfered with the duties and responsibilities of tending the Bascule Bridges. See United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 466, (1995) (“the government bears the burden of justifying its adverse employment decision.”); Baar v. Jefferson Cty. Bd. of Educ., 476 Fed.Appx. 621, 628 (6th Cir. 2012) (“public employers must balance their own interests with the First Amendment rights of their employees . . . the school board bears the burden of justifying broader restrictions on speech with ever-stronger state interests.”)
2. Legitimate, non-retaliatory reason: If Plaintiff establishes his prima facie case, Defendant may establish, by a preponderance of the evidence, that the adverse action would still have been taken absent the protected conduct.
3. Mitigation of damages: Whether Plaintiff failed to mitigate damages following the loss of employment.

         I.

         On February 12, 2018, Defendants filed four motions in limine, and Plaintiff filed one. Defendants seek to: 1) exclude Plaintiff's performance evaluations; 2) strike/limit Plaintiff's claim for wage loss damages; 3) strike/limit Plaintiff's claim for emotional distress, back pay, and future wage loss damages; 4) strike Plaintiff's claim for unemployment benefits. ECF Nos. 46, 47, 50, 51. Plaintiff seeks to prohibit Defendants from: 1) introducing evidence of collateral sources of income; 2) arguing that Plaintiff's PTSD is evidence that he did not ...


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